The crime of which the defendant has been convicted consisted of breaking into a New York Central freight car at Canandaigua on December 15, 1924, and taking from the car a barrel of whisky. Reversal is urged by the defendant on the grounds that guilt is not established and that in any event there is no evidence other than that of accomplices tending to connect the defendant with the commission of the crime, and that the court erred in receiving certain evidence. A careful perusal of the entire case leads to the conclusion that there was sufficient proof to warrant the jury in finding as they did, and the judgment would be affirmed were it not for a serious error in the reception of evidence.
The defendant was interrogated by the district attorney when sworn as a witness on his own behalf as to whether in the month *24of May or June, 1924, i. e., six months before the stealing of the whisky, he had not publicly sold whisky on the streets of Geneseo to various persons, among others to one James M. Dwyer. This the defendant denied. He was also asked whether he did not sell liquor, whisky, at his own residence in Canandaigua in September, 1924. This he denied. He was asked whether in August and September he was not engaged in the business of making up concoctions of liquor in the cellar of his house, and this he also denied.
After the defendant had closed his case the People called James M. Dwyer as'a witness in rebuttal, and over the objection and exception of the defendant were permitted to show by this witness that in the month of May or June, 1924, the defendant offered to the witness and actually sold to him for the sum of five dollars a bottle of whisky on the public streets in the village of Geneseo. The trial judge evidently received the testimony as impeaching the credibility of the defendant as a witness. After the court’s charge to the jury, the following occurred: “ [Defendant’s counsel]: I also ask the Court to charge the jury that the evidence of the alleged sale of whisky to Dwyer is no evidence of the commission of the crime charged. The Court: Oh, yes, gentlemen, that is true. I intended to so charge you, but it escaped my attention. District Attorney: I think in view of the request of counsel, your Honor should charge in what way. The Court: It only affects his credibility as a witness and was admitted solely for that purpose.” The matter was collateral. The evidence was not admissible to affect the credibility of the witness. (People v. DeGarmo, 179 N. Y. 130; People v. Greenwall, 108 id. 296; People v. Grutz, 212 id. 72; People v. Van Tassel, 26 App. Div. 445; affd., 156 N. Y. 561.) It is urged on behalf of the People, however, that the reception of the evidence is justifiable as bearing upon defendant’s motive and intent, as part qf a common scheme or plan with the crime charged in the indictment, and as tending to establish the identity of the defendant as the person who burglarized the car. (People v. Molineux, 168 N. Y. 264.) The evidence, however, was of a single sporadic sale six months before the commission of the crime and the case is barren of proof that the defendant was engaged in the prohibited traffic between that date and the date when the burglary occurred. None of the grounds suggested in the People’s brief in justification is applicable. Such reasons might in a proper case justify proof of the commission of another crime, but such proof must reasonably tend to establish motive, intent, common plan or identity, which this evidence does not. The transaction is too remote. The error cannot be overlooked *25as unsubstantial or lacking in prejudice as was a somewhat similar error in People v. Kasprzyk (209 App. Div. 449; affd., 238 N. Y. 633). There the evidence erroneously received was held to be innocuous because found “ distinctly favorable to the defendant.” When the use made of the evidence under discussion by the district attorney in his summation is considered, the damaging character of this incompetent evidence is emphasized. A substantial right of the defendant to a trial free from harmful error was violated by the reception of this evidence. (Code Crim. Proc. §§ 527, 542.)
The judgment of conviction should be reversed and a new trial ordered.
Htjbbs, P. J., Clark -and Crouch, JJ., concur; Davis, J., dissents in an opinion and votes for affirmance.